New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 86 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 24 February 2000 JUDGMENT DATE : 24 February 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J I Barker Q.C. M Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On objection to a question asked by Mr Barker during cross-examination of witness Gulley - T4267 DECISION : See paragraph 7 DLJT: 99 (Ex Tempore - Revised) [2000] NSWSC 86 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE THURSDAY 24 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On objection to a question asked by Mr Barker during cross-examination of witness Gulley - T4267) 1 HIS HONOUR: The question has been asked of Mr Gulley, the nub of which is whether in his opinion it was improper, in the sense of professionally improper, for the plaintiff to have Mr Pearce execute the statutory declaration recanting, to put it shortly, previous allegations. 2 It is important to bear in mind that that question is asked on the basis that the witness has been required to assume at least six or seven antecedent facts. Mr Gulley is giving evidence, as I presently perceive it, on that component of the defendant's case on justification particularised in relation to Mr Pearce on 25 January this year in the document headed "Particulars of Truth (Admissions)". It is the defendant's position in this case that the found imputations are substantially true, the defendant's contextual imputations are substantially true, in respect of which position evidence has been and will be called. 3 The evidence falls into two very general categories, which I will describe as the first category, being evidence as to events said to have taken place between an accuser/complainant and the plaintiff. The second category of evidence relates to things done by the plaintiff or on his behalf which, if established on the balance of probabilities, could rationally be understood to be admissions against the plaintiff's interest. It is in relation to the last category, as I have said, that Mr Gulley is giving his present testimony. 4 The ultimate conclusion will be one, of course, in the first instance of fact; and subject to what that finding is, the application of any relevant law. 5 The objective facts in relation to the defendant's case in the second category relating to Mr Pearce has been the subject of evidence yesterday and cross-examination this morning. The view to which I've come is this. That the objective facts will lend themselves to submissions by both sides focused upon the establishment of that second category or the failure to establish it. 6 Each party, particularly yesterday and today, have made statements in court concerned with its side's position. Whatever the parties say by way of advancement of their client's cause is, of course, recorded, but will in the end be subject to evidence. In other words, as the trial judge, whilst I am informed, it does not mean I am necessarily impressed by such statements, whether they be serious and advised presentations of the client's case on a particular issue, or no more than rhetoric. 7 Whilst every respect must be afforded to any opinion expressed by Mr Gulley, and I do not understand the defendant to be challenging this, this is a case where ultimately it will decided by me only on the evidence in the light of the submissions. I disallow the question. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.